by Richard W. Painter, former Associate Counsel to the President and Chief White House ethics lawyer, 2005-2007. Painter is co-author of the ACS Issue Brief, “Extraordinary Circumstances: The Legacy of the Gang of 14 and a Proposal for Judicial Nominations Reform.”
Word on Capitol Hill is that Senate Democrats are thinking seriously about changing the Senate's rules to make filibusters less likely. This is a welcome development because the filibuster -- a procedural mechanism for refusing to allow any vote to take place -- has no place in a body that prides itself on deliberation and decision. A decision not to decide, or to allow a minority of senators to prevent the others from deciding, is not deliberation. It is nothing more than obstruction, a way of saying that "if the majority won't vote my way I won't let them vote at all."
Less than a decade ago the tables were turned and Democrats used filibusters to block President George W. Bush's judicial nominees. Republicans considered amending the Senate's rules to eliminate or reduce the likelihood of filibusters, but in the end they chickened out. They were perhaps more interested in preserving their power to frustrate a future Democratic president than in supporting President Bush. Perhaps they believed that even senators of the president's own political party benefit from filibusters because they can ask the White House for something in return for trying to break the filibuster. For whatever reason Senate Republicans failed to do something about the problem and some of President Bush's most qualified judicial nominees were kept off the federal courts as a result. Other nominees had to wait around for months before they were finally confirmed.
This situation is even worse under President Obama now that Senate Republicans who once said they despised the filibuster have shown that they actually enjoy it. Thus far, Senate Democrats have followed the precedent of whining about the filibuster but not doing anything about it, perhaps fearing that they may once again be in the minority with a Republican in the White House.